misunderstand him. What he contends for is that it is constitutional to
interrupt the administration of the Constitution itself, in the hands of
those who are chosen and sworn to administer it, by the direct
interference, in form of law, of the States, in virtue of their
sovereign capacity. The inherent right in the people to reform their
government I do not deny; and they have another right, and that is to
resist unconstitutional laws, without overturning the government. It is
no doctrine of mine that unconstitutional laws bind the people. The
great question is, Whose prerogative is it to decide on the
constitutionality or unconstitutionality of the laws? On that the main
debate hinges. The proposition that, in case of a supposed violation of
the Constitution by Congress, the States have a constitutional right to
interfere and annul the law of Congress, is the proposition of the
gentleman. I do not admit it. If the gentleman had intended no more than
to assert the right of revolution for justifiable cause, he would have
said only what all agree to. But I cannot conceive that there can be a
middle course, between submission to the laws, when regularly pronounced
constitutional, on the one hand, and open resistance, which is
revolution or rebellion, on the other. I say the right of a State to
annul a law of Congress cannot be maintained, but on the ground of the
inalienable right of man to resist oppression; that is to say, upon the
ground of revolution. I admit that there is an ultimate violent remedy,
above the Constitution and in defiance of the Constitution, which may
be resorted to when a revolution is to be justified. But I do not admit
that, under the Constitution and in conformity with it, there is any
mode in which a State government, as a member of the Union, can
interfere and stop the progress of the general government, by force of
her own laws, under any circumstances whatever.
[Sidenote: The source of the power of the government of the United
States.]
[Sidenote: The people's government.]
[Sidenote: The Constitution declared by the people to be the supreme
law.]
[Sidenote: The general government and the State governments derive their
authority from the people.]
[Sidenote: General powers as over against State powers.]
This leads us to inquire into the origin of this government and the
source of its power. Whose agent is it? Is it the creature of the State
legislatures, or the creature of the people? If the government of the
United States be the agent of the State governments, then they may
control it, provided they can agree in the manner of controlling it; if
it be the agent of the people, then the people alone can control it,
restrain it, modify, or reform it. It is observable enough that the
doctrine for which the honorable gentleman contends leads him to the
necessity of maintaining, not only that this general government is the
creature of the States, but that it is the creature of each of the
States severally, so that each may assert the power for itself of
determining whether it acts within the limits of its authority. It is
the servant of four-and-twenty masters, of different wills and different
purposes, and yet bound to obey all. This absurdity (for it seems no
less) arises from a misconception as to the origin of this government
and its true character. It is, Sir, the people's Constitution, the
people's government, made for the people, made by the people, and
answerable to the people. The people of the United States have declared
that this Constitution shall be the supreme law. We must either admit
the proposition, or dispute their authority. The States are,
unquestionably, sovereign, so far as their sovereignty is not affected
by this supreme law. But the State legislatures, as political bodies,
however sovereign, are yet not sovereign over the people. So far as the
people have given power to the general government, so far the grant is
unquestionably good, and the government holds of the people, and not of
the State governments. We are all agents of the same supreme power, the
people. The general government and the State governments derive their
authority from the same source. Neither can, in relation to the other,
be called primary, though one is definite and restricted, and the other
general and residuary. The national government possesses those powers
which it can be shown the people have conferred on it, and no more. All
the rest belongs to the State governments, or to the people themselves.
So far as the people have restrained State sovereignty, by the
expression of their will, in the Constitution of the United States, so
far, it must be admitted, State sovereignty is effectually controlled. I
do not contend that it is, or ought to be, controlled farther. The
sentiment to which I have referred propounds that State sovereignty is
only to be controlled by its own "feeling of justice"; that is to say,
it is not to be controlled at all, for one who is to follow his own
feelings is under no legal control. Now, however men may think this
ought to be, the fact is, that the people of the United States have
chosen to impose control on State sovereignties. There are those,
doubtless, who wish they had been left without restraint; but the
Constitution has ordered the matter differently. To make war, for
instance, is an exercise of sovereignty; but the Constitution declares
that no State shall make war. To coin money is another exercise of
sovereign power; but no State is at liberty to coin money. Again, the
Constitution says that no sovereign State shall be so sovereign as to
make a treaty. These prohibitions, it must be confessed, are a control
on the State sovereignty of South Carolina, as as well as of the other
States, which does not arise "from her own feelings of honorable
justice." The opinion referred to, therefore, is in defiance of the
plainest provisions of the Constitution.
[Sidenote: The "sovereign" States.]
There are other proceedings of public bodies which have already been
alluded to, and to which I refer again for the purpose of ascertaining
more fully what is the length and breadth of that doctrine, denominated
the Carolina doctrine, which the honorable member has now stood up on
this floor to maintain. In one of them I find it resolved, that "the
tariff of 1828, and every other tariff designed to promote one branch of
industry at the expense of others, is contrary to the meaning and
intention of the Federal compact; and such a dangerous, palpable, and
deliberate usurpation of power, by a determined majority, wielding the
general government beyond the limits of its delegated powers, as calls
upon the States which compose the suffering minority, in their sovereign
capacity, to exercise the powers which, as sovereigns, necessarily
devolve upon them, when their compact is violated."
[Sidenote: Are protective tariffs unconstitutional usurpations?]
Observe, Sir, that this resolution holds the tariff of 1828, and every
other tariff designed to promote one branch of industry at the expense
of another, to be such a dangerous, palpable, and deliberate usurpation
of power, as calls upon the States, in their sovereign capacity, to
interfere by their own authority. This denunciation, Mr. President, you
will please to observe, includes our old tariff of 1816, as well as all
others; because that was established to promote the interest of the
manufacturers of cotton, to the manifest and admitted injury of the
Calcutta cotton trade. Observe, again, that all the qualifications are
here rehearsed and charged upon the tariff, which are necessary to bring
the case within the gentleman's proposition. The tariff is a usurpation;
it is a dangerous usurpation; it is a palpable usurpation; it is a
deliberate usurpation. It is such a usurpation, therefore, as calls upon
the States to exercise their right of interference. Here is a case,
then, within the gentleman's principles, and all his qualifications of
his principles. It is a case for action. The Constitution is plainly,
dangerously, palpably, and deliberately violated; and the States must
interpose their own authority to arrest the law. Let us suppose the
State of South Carolina to express this same opinion, by the voice of
her legislature. That would be very imposing; but what then? Is the
voice of one State conclusive? It so happens that, at the very moment
when South Carolina resolves that the tariff laws are unconstitutional,
Pennsylvania and Kentucky resolve exactly the reverse. _They_ hold those
laws to be both highly proper and strictly constitutional. And now, Sir,
how does the honorable member propose to deal with this case? How does
he relieve us from this difficulty, upon any principle of his? His
construction gets us into it; how does he propose to get us out?
[Sidenote: Nullification would make uniform laws impossible.]
In Carolina, the tariff is a palpable, deliberate usurpation; Carolina,
therefore, may nullify it, and refuse to pay the duties. In
Pennsylvania, it is both clearly constitutional and highly expedient;
and there the duties are to be paid. And yet we live under a government
of uniform laws, and under a Constitution too, which contains an express
provision, as it happens, that all duties shall be equal in all the
States. Does not this approach absurdity?
If there be no power to settle such questions, independent of either of
the States, is not the whole Union a rope of sand? Are we not thrown
back again, precisely, upon the old Confederation?
[Sidenote: The Union, with nullification, a mere connection during
pleasure.]
It is too plain to be argued. Four-and-twenty interpreters of
constitutional law, each with a power to decide for itself, and none
with authority to bind anybody else, and this constitutional law the
only bond of their union! What is such a state of things but a mere
connection during pleasure, or, to use the phraseology of the times,
_during feeling_? And that feeling, too, not the feeling of the people,
who established the Constitution, but the feeling of the State
governments!
[Sidenote: New England rejects the South Carolina doctrine.]
The gentleman has found no case, he can find none, to support his own
opinions by New England authority. New England has studied the
Constitution in other schools and under other teachers. She looks upon
it with other regards, and deems more highly and reverently both of its
just authority and its utility and excellence. The history of her
legislative proceedings may be traced. The ephemeral effusions of
temporary bodies, called together by the excitement of the occasion, may
be hunted up; they have been hunted up. The opinions and votes of her
public men, in and out of Congress, may be explored. It will all be in
vain. The Carolina doctrine can derive from her neither countenance nor
support. She rejects it now; she always did reject it; and till she
loses her senses, she always will reject it. The honorable member has
referred to expressions on the subject of the embargo law, made in this
place, by an honorable and venerable gentleman,[32] now favoring us with
his presence. He quotes that distinguished Senator as saying that, in
his judgment, the embargo law was unconstitutional, and that therefore,
in his opinion, the people were not bound to obey it. That, Sir, is
perfectly constitutional language. An unconstitutional law is not
binding; _but then it does not rest with a resolution or a law of a
State legislature to decide whether an act of Congress be or be not
constitutional_. An unconstitutional act of Congress would not bind the
people of this District, although they have no legislature to interfere
in their behalf;[33] and, on the other hand, a constitutional law of
Congress does bind the citizens of every State, although all their
legislatures should undertake to annul it by act or resolution. The
venerable Connecticut Senator is a constitutional lawyer, of sound
principles and enlarged knowledge; a statesman practised and
experienced, bred in the company of Washington, and holding just views
upon the nature of our governments. He believed the embargo
unconstitutional, and so did others; but what then? Who did he suppose
was to decide that question? The State legislatures? Certainly not. No
such sentiment ever escaped his lips.
Let us follow up, Sir, this New England opposition to the embargo laws;
let us trace it, till we discern the principle which controlled and
governed New England throughout the whole course of that opposition. We
shall then see what similarity there is between the New England school
of constitutional opinions and this modern Carolina school. The
gentleman, I think, read a petition from some single individual
addressed to the legislature of Massachusetts, asserting the Carolina
doctrine, that is, the right of State interference to arrest the laws of
the Union. The fate of that petition shows the sentiment of the
legislature. It met no favor. The opinions of Massachusetts were very
different. They had been expressed in 1798, in answer to the resolutions
of Virginia, and she did not depart from them, nor bend them to the
times. Misgoverned, wronged, oppressed, as she felt herself to be, she
still held fast her integrity to the Union. The gentleman may find in
her proceedings much evidence of dissatisfaction with the measures of
government, and great and deep dislike to the embargo; all this makes
the case so much the stronger for her; for, notwithstanding all this
dissatisfaction and dislike, she still claimed no right to sever the
bonds of the Union. There was heat, and there was anger in her political
feeling. Be it so; but neither her heat nor her anger betrayed her into
infidelity to the government. The gentleman labors to prove that she
disliked the embargo[34] as much as South Carolina dislikes the tariff,
and expressed her dislike as strongly. Be it so; but did she propose the
Carolina remedy? did she threaten to interfere, by State authority, to
annul the laws of the Union? That is the question for the gentleman's
consideration.
[Sidenote: New England attitude toward the embargo of 1807.]
[Sidenote: The government has power of deciding ultimately on the just
extent of its own authority.]
No doubt, Sir, a great majority of the people of New England
conscientiously believed the embargo law of 1807 unconstitutional; as
conscientiously, certainly, as the people of South Carolina hold that
opinion of the tariff. They reasoned thus: Congress has power to
regulate commerce; but here is a law, they said, stopping all commerce,
and stopping it indefinitely. The law is perpetual; that is, it is not
limited in point of time, and must of course continue until it shall be
repealed by some other law. It is as perpetual, therefore, as the law
against treason or murder. Now, is this regulating commerce, or
destroying it? Is it guiding, controlling, giving the rule to commerce,
as a subsisting thing, or is it putting an end to it altogether? Nothing
is more certain than that a majority in New England deemed this law a
violation of the Constitution. The very case required by the gentleman
to justify State interference had then arisen. Massachusetts believed
this law to be "a deliberate, palpable, and dangerous exercise of a
power not granted by the Constitution." Deliberate it was, for it was
long continued; palpable she thought it, as no words in the Constitution
gave the power, and only a construction, in her opinion most violent,
raised it; dangerous it was, since it threatened utter ruin to her most
important interests. Here, then, was a Carolina case. How did
Massachusetts deal with it? It was, as she thought, a plain, manifest,
palpable violation of the Constitution, and it brought ruin to her
doors. Thousands of families, and hundreds of thousands of individuals,
were beggared by it. While she saw and felt all this, she saw and felt
also, that, as a measure of national policy, it was perfectly futile;
that the country was no way benefited by that which caused so much
individual distress; that it was efficient only for the production of
evil, and all that evil inflicted on ourselves. In such a case, under
such circumstances, how did Massachusetts demean herself? Sir, she
remonstrated, she memorialized, she addressed herself to the general
government, not exactly "with the concentrated energy of passion," but
with her own strong sense, and the energy of sober conviction. But she
did not interpose the arm of her own power to arrest the law, and break
the embargo. Far from it. Her principles bound her to two things; and
she followed her principles, lead where they might. First, to submit to
every constitutional law of Congress; and secondly, if the
constitutional validity of the law be doubted, to refer that question to
the decision of the proper tribunals. The first principle is vain and
ineffectual without the second. A majority of us in New England believed
the embargo law unconstitutional; but the great question was, and always
will be in such cases, Who is to decide this? Who is to judge between
the people and the government? And, Sir, it is quite plain that the
Constitution of the United States confers on the government itself, to
be exercised by its appropriate department, and under its own
responsibility to the people, this power of deciding ultimately and
conclusively upon the just extent of its own authority. If this had not
been done, we should not have advanced a single step beyond the old
Confederation.
[Sidenote: The vexed question of the tariff.]
[Sidenote: The laws of the Union beyond the control of the States.]
Sir, the human mind is so constituted that the merits of both sides of a
controversy appear very clear, and very palpable, to those who
respectively espouse them; and both sides usually grow clearer as the
controversy advances. South Carolina sees unconstitutionality in the
tariff; she sees oppression there also, and she sees danger.
Pennsylvania, with a vision not less sharp, looks at the same tariff,
and sees no such thing in it; she sees it all constitutional, all
useful, all safe. The faith of South Carolina is strengthened by
opposition, and she now not only sees, but _resolves_, that the tariff
is palpably unconstitutional, oppressive, and dangerous; but
Pennsylvania, not to be behind her neighbors, and equally willing to
strengthen her own faith by a confident asseveration, _resolves_, also,
and gives to every warm affirmative of South Carolina, a plain,
downright, Pennsylvania negative. South Carolina, to show the strength
and unity of her opinion, brings her assembly to a unanimity, within
seven voices; Pennsylvania, not to be outdone in this respect any more
than in others, reduces her dissentient fraction to a single vote. Now,
Sir, again I ask the gentleman, What is to be done? Are these States
both right? Is he bound to consider them both right? If not, which is in
the wrong? or rather, which has the best right to decide? And if he, and
if I, are not to know what the Constitution means, and what it is, till
those two State legislatures, and the twenty-two others, shall agree in
its construction, what have we sworn to, when we have sworn to maintain
it? I was forcibly struck, Sir, with one reflection, as the gentleman
went on in his speech. He quoted Mr. Madison's resolutions, to prove
that a State may interfere, in a case of deliberate, palpable, and
dangerous exercise of a power not granted. The honorable member supposes
the tariff law to be such an exercise of power; and that consequently a
case has arisen in which the State may, if it see fit, interfere by its
own law. Now, it so happens, nevertheless, that Mr. Madison deems this
same tariff law quite constitutional. Instead of a clear and palpable
violation, it is, in his judgment, no violation at all. So that, while
they use his authority for a hypothetical case, they reject it in the
very case before them. All this, Sir, shows the inherent futility, I had
almost used a stronger word, of conceding this power of interference to
the State, and then attempting to secure it from abuse by imposing
qualifications of which the States themselves are to judge. One of two
things is true: either the laws of the Union are beyond the discretion
and beyond the control of the States; or else we have no constitution of
general government, and are thrust back again to the days of the
Confederation.
I must now beg to ask, Sir, Whence is this supposed right of the States
derived? Where do they find the power to interfere with the laws of the
Union? Sir, the opinion which the honorable gentleman maintains is a
notion founded in a total misapprehension, in my judgment, of the origin
of this government, and of the foundation on which it stands. I hold it
to be a popular government, erected by the people; those who administer
it responsible to the people; and itself capable of being amended and
modified, just as the people may choose it should be. It is as popular,
just as truly emanating from the people, as the State governments. It is
created for one purpose; the State governments for another. It has its
own powers; they have theirs. There is no more authority with them to
arrest the operation of a law of Congress, than with Congress to arrest
the operation of their laws. We are here to administer a Constitution
emanating immediately from the people, and trusted by them to our
administration. It is not the creature of the State governments. It is
of no moment to the argument, that certain acts of the State
legislatures are necessary to fill our seats in this body. That is not
one of their original State powers, a part of the sovereignty of the
State. It is a duty which the people, by the Constitution itself, have
imposed on the State legislatures; and which they might have left to be
performed elsewhere, if they had seen fit. So they have left the choice
of President with electors; but all this does not affect the proposition
that this whole government, President, Senate, and House of
Representatives, is a popular government. It leaves it still all its
popular character. The governor of a State (in some of the States) is
chosen, not directly by the people, but by those who are chosen by the
people, for the purpose of performing, among other duties, that of
electing a governor. Is the government of the State, on that account,
not a popular government? This government, Sir, is the independent
offspring of the popular will. It is not the creature of State
legislatures; nay, more, if the whole truth must be told, the people
brought it into existence, established it, and have hitherto supported
it, for the very purpose, amongst others, of imposing certain salutary
restraints on State sovereignties. The States cannot now make war; they
cannot contract alliances; they cannot make, each for itself, separate
regulations of commerce; they cannot lay imposts; they cannot coin
money. If this Constitution, Sir, be the creature of State legislatures,
it must be admitted that it has obtained a strange control over the
volitions of its creators.
[Sidenote: The people erected the government.]
[Sidenote: A constitution with enumerated powers.]
[Sidenote: The main design of the Constitution to free the government
from State agency.]
[Sidenote: The failure of the Confederation the cause of the
Constitution.]
The people, then, Sir, erected this government. They gave it a
Constitution, and in that Constitution they have enumerated the powers
which they bestow on it. They have made it a limited government. They
have defined its authority. They have restrained it to the exercise of
such powers as are granted; and all others, they declare, are reserved
to the States or the people. But, Sir, they have not stopped here. If
they had, they would have accomplished but half their work. No
definition can be so clear as to avoid possibility of doubt; no
limitation so precise as to exclude all uncertainty. Who, then, shall
construe this grant of the people? Who shall interpret their will, where
it may be supposed they have left it doubtful? With whom do they repose
this ultimate right of deciding on the powers of the government? Sir,
they have settled all this in the fullest manner. They have left it with
the government itself, in its appropriate branches. Sir, the very chief
end, the main design, for which the whole Constitution was framed and
adopted, was to establish a government that should not be obliged to act
through State agency, or depend on State opinion and State discretion.
The people had had quite enough of that kind of government under the
Confederation. Under that system, the legal action, the application of
law to individuals, belonged exclusively to the States. Congress could
only recommend; their acts were not of binding force till the States had
adopted and sanctioned them. Are we in that condition still? Are we yet
at the mercy of State discretion and State construction? Sir, if we are,
then vain will be our attempt to maintain the Constitution under which
we sit.
But, Sir, the people have wisely provided, in the Constitution itself, a
proper, suitable mode and tribunal for settling questions of
constitutional law. There are in the Constitution grants of powers to
Congress, and restrictions on these powers. There are, also,
prohibitions on the States. Some authority must, therefore, necessarily
exist, having the ultimate jurisdiction to fix and ascertain the
interpretation of these grants, restrictions, and prohibitions. The
Constitution has itself pointed out, ordained, and established that
authority. How has it accomplished this great and essential end? By
declaring, Sir, that "_the Constitution, and the laws of the United
States, made in pursuance thereof, shall be the supreme law of the land,
any thing in the constitution or laws of any State to the contrary
notwithstanding_."
[Sidenote: The supremacy of the Constitution.]